Constitution of States

The Principles of Natural and Politic Law (1748)

Jean Jacques Burlamaqui

BOOK 2, PART 1, CHAPTER 4Of the essential constitution of states, and of the manner, in which they are formed.

I. AFTER treating of the original of civil societies, the natural order of our subject leads us to enquire into the essential constitution of states, that is, into the manner, in which they are formed, and the internal frame of those surprising structures.

II. From what has been said in the preceding chapter it follows, that the only effectual method, which mankind could employ in order to screen themselves from the evils, with which they were afflicted in the state of nature, and to procure to themselves all the advantages wanting to their security and happiness, must be drawn from man himself, and from the assistance of society.

III. For this purpose it was necessary, that a multitude of people should unite in so particular a manner that their preservation must depend on each other, to the end, that they remain under a necessity of mutual assistance, and, by this junction of strength and interests, be able not only to repel the insults, against which each individual could not guard so easily, but also to contain those, who should attempt to deviate from their duty, and to promote more effectually their common advantage. Let us explain more particularly how this could be effected.

IV. Two things were necessary for this purpose. 1. It was necessary to unite forever the wills of all the members of the society in such a manner, that from that time forward they should never desire but one and the same thing, in whatever relates to the end and purpose of society. 2. It was requisite afterwards to establish a supreme power, supported by the strength of the whole body (by which means they might over awe those, who should be inclinable to disturb the peace) and to inflict a present and sensible evil on such, as should attempt to act contrary to the public good.

V. It is from this union of wills and of strength, that the body politic or state results; and without it we could never conceive a civil society. For let the number of confederates be ever so great, if each man was to follow his own private judgment in things, relating to the public good, they would only embarrass one another; and the diversity of inclinations and judgments, arising from the levity and natural inconstancy of man, would soon demolish all concord, and mankind would thus relapse into the inconveniences of the state of nature. Besides, a society of that kind could never act long in concert, and for the same end, not maintain itself in that harmony, which constitutes its whole strength, without a superior power, whose business it is to serve as a check to the inconstancy and malice of man, and to oblige each individual to direct all his actions to the public utility.

VI. All this is performed by means of covenants; for this union of wills in one and the same person could never be so effected, as to actually destroy the natural diversity of inclinations and sentiments; but it is done by an engagement, which every man enters into, of submitting his private will to that of a single person, or of an assembly; insomuch that every resolution of this person or assembly, concerning things relative to the public security or advantage, must be considered, as the positive will of all in general, and of each in particular.

VII. With regard to the union of strength, which produces the sovereign power, it is not formed by each man’s communicating physically his strength to a single person, so as to remain utterly weak and impotent; but by a covenant or engagement, whereby all in general and each in particular oblige themselves to make no use of their strength, but in such a manner, as shall be prescribed to them by the person, on whom they have, with one common accord, conferred the supreme authority.

VIII. By this union of the body politic under one and the same chief, each individual acquires, in some measure, as much strength, as the whole society united. Suppose for instance there are a million of men in the commonwealth, each man is able to resist this million, by means of their subjection to the sovereign, who keeps them all in awe, and hinders them from hurting one another. This multiplication of strength in the body politic resembles that of each member in the human body; take them asunder, and their vigor is no more; but by their mutual union the strength of each increases, and they form altogether a robust and animated body.

IX. The state may be defined a society, by which a multitude of people unite together, under the dependance of a sovereign, in order to find, through his protection and care, the happiness, to which they naturally aspire. The definition, which Tully gives, amounts nearly to the same. Multitudo juris consensu, et utilitatis communione sociata. A multitude of people united together by a common interest, and by common laws, to which they submit with one accord.

X. The state is therefore considered as a body, or as a moral person, of which the sovereign is the chief or head, and the subjects are the members; in consequence of which we attribute to this person certain actions peculiar to him, certain rights, privileges, and possessions, distinct from those of each citizen, and to which neither each citizen, nor many, nor even altogether can pretend; but the sovereign only.

XI. It is moreover this union of several persons in one body, produced by the concurrence of the wills and the strength of every individual in one and the same person, that distinguishes the state from a multitude. For a multitude is only an assemblage of several persons, each of whom has his own will, with the liberty of judging, according to his own notions, of whatever is proposed to him, and of determining as he pleases; for which reason they can be said to have only one will. Whereas the state is a body, or a society, animated by one only soul, which directs all its motions, and makes all its members act after a constant and uniform manner, with a view to one and the same end, namely the public utility.

XII. But it will be here objected, that if the union of the will and of the strength of each member of the society, in the person of the sovereign, destroy neither the will nor the natural force of each individual; if they always continue in possession of it; and if they are able in fact to employ it against the sovereign himself; what does the force of the state consist in, and what is it, that constitutes the security of this society? I answer, that two things contribute chiefly to maintain the state, and the sovereign, who is the soul of it.

The first is the engagement itself, by which individuals have subjected themselves to the command of a sovereign; an engagement, which derives a considerable force both from divine authority, and from the sanction of an oath. But as to vicious and ill disposed minds, on whom these motives make no impression, the strength of the government consists chiefly in the fear of those punishments, which the sovereign may inflict upon them, by virtue of the power, with which he is invested.

XIII. Now since the means, by which the sovereign is enabled to compel rebellious and refractory persons to their duty, consists in this, that the rest of the subjects join their strength with him for this end (for were it not for this, he would have no more power, than the lowest of his subjects) it follows that it is the ready submission of good subjects, that furnishes the sovereign with the means of repressing the insolent, and of maintaining his authority.

XIV. But provided a sovereign shows ever so small an attachment to his duty, he will always find it easy to fix the better part of his subjects in his interest, and of course to have the greatest part of the strength of the state in his hands, and to maintain the authority of the government. Experience has always shown, that princes need only a common share of virtue to be adored by their subjects. We may therefore affirm, that the sovereign is capable of deriving from himself the means, necessary for the support of his authority; and that a prudent exercise of the sovereignty, pursuant to the end, for which it was designed, constitutes at the same time the happiness of the people, and, by a necessary consequence, the greatest security of the government in the person of the sovereign.

XV. Tracing the principles here established in regard to the formation of states, etc. were we to suppose, that a multitude of people, who bad lived hitherto independent of each other, wanted to establish a civil society, we shall find a necessity for different covenants, and for a general decree.

1. The first covenant is that, by which each individual engages with all the rest to join forever in one body, and to regulate, with one common consent, whatever regards their preservation and their common security. These, who do not enter into this first engagement, remain excluded from the new society.

2. There must afterwards be a decree made for settling the form of government; otherwise they could never take any fixt measures for prompting effectually, and in concert, the public security and welfare.

3. In fine, when once the form of government is settled, there must be another covenant, whereby, after having pitched upon one or more persons to be invested with the power of governing, those, on whom this supreme authority is conferred, engage to consult most carefully the common security and advantage, and the others promise fidelity and allegiance to the sovereign. This last covenant includes a submission of the strength and will of each individual to the will of the head of the society, as far as the public good requires; and thus it is, that a regular state and perfect government are formed,

XVI, What we have hitherto delivered may be further illustrated by the account we have in history concerning the foundation of the Roman state. At first we behold a multitude of people, who flock together with a view of settling on the banks of the Tiber, afterwards they consult about what form of government they shall establish, and, the party for monarchy prevailing, they confer the supreme authority on Romulus.1

XVII. And though we are strangers to the original of most states, yet we must not imagine, that what has been hens said concerning the manner, in which civil societies are formed, is a mere fiction. For, since it is certain, that all civil societies had a beginning, it is impossible to conceive how the members, of which they are composed, could agree to live together, dependant on a supreme authority, without supposing the covenants abovementioned.

XVIII. And yet all political writers do not explain the origin of states after our manner. Some there are,2 who pretend that states are formed merely by the covenant of the subjects with one another, by which each man enters into an engagement with all the rest not to resist the will of the sovereign, upon condition, that the rest on their side submit to the same engagement; but they pretend, that there is no original compact between the sovereign and the subjects.

XIX. The reason, why these writers give this explication of the matter, is obvious. Their design is to give an arbitrary and unlimited authority to sovereigns, and to deprive the subjects of every means of withdrawing their allegiance upon any pretext whatever, notwithstanding the bad use the sovereign may make of his authority. For this purpose it was absolutely necessary to free kings from all restraint of compact or covenant between them and their subjects, which, without doubt, is the chief instrument of limiting their power.

XX. But notwithstanding it is of the utmost importance to mankind to support the authority of kings, and to defend it against the attempts of restless and mutinous spirits, yet we must not deny evident truths, or refuse to acknowledge a covenant, in which there is manifestly a mutual promise of performing things, to which they were not before obliged.

XXI. When I submit voluntarily to a prince, I promise him allegiance on condition, that he will protect me; the prince on his side promises me his protection on condition, that I will obey him. Before this promise, I was not obliged to obey him, nor was he obliged to protect me, at least by any perfect obligation; it is therefore evident, that there must be a mutual engagement.

XXII. But there is still something more; for, so far is the system, we are here refuting, from strengthening the supreme authority, and from screening it from the capricious invasions of the subject, that, on the contrary, nothing is of a more dangerous consequence to sovereigns, than to fix their right on such a foundation. For if the obligation of the subjects towards their princes is founded merely on the mutual covenant between the subjects, by which each man engages for the sake of the rest to obey the sovereign, on condition, that the rest do the same for his sake; it is evident, that at this rate every subject makes the force of his engagement depend on the execution of that of every other fellow subject; and consequently, if anyone refuses to obey the sovereign, all the rest stand released from their allegiance. Thus by endeavouring to extend the rights of sovereigns beyond their just limits, instead of strengthening, they rather inadvertently weaken them.